from the clean-slates-for-all! dept

There's nothing about American policing that police unions can't make worse. A powerful obstacle standing in the way of accountability and transparency, police unions ensure Americans remain underserved by their public servants.

What they're best at doing is tipping the scale in favor of bad cops. Apparently laboring under the pretense that even a bad cop is a better person than anyone not wearing the blue, unions effectively neutralize oversight by ensuring city and state agencies cannot easily access discipline records. Then they go further, preventing even the police from policing themselves.

Phoenix Police Sgt. Philip Roberts was suspended from the force for 30 days after an internal investigation concluded he failed to properly manage a 2015 incident where officers shot and killed a mentally ill man.

Lt. Dalin Webb received a written reprimand for his 2013 arrest on domestic violence charges in which he reportedly shoved his wife and choked his teenage son.

Officer Joshua Wayne Beeks was suspended for 15 days when the Department discovered he was involved in three unauthorized high-speed pursuits in a single year that killed two people.

But there's little indication in Phoenix Police Department personnel and internal investigations records that those officers were ever disciplined.

That's because Roberts, Webb and Beeks, like hundreds of other Phoenix police officers in recent years, were allowed to erase records of their misconduct from files kept by the Police Department.

The practice, which the Department refers to as "purging," has been standard for more than two decades under the police union's contract, but the public has been unaware of it.

The contract also prohibits misconduct detailed in the purged records from being considered in future disciplinary investigations or performance evaluations.

If the goal is to keep bad cops employed indefinitely, it's been super-effective. Over 500 of the city's 3,000 officers have had their pasts memory-holed by the union contract, covering over 600 misconduct incidents ranging from failure to complete reports to deployments of excessive force.

The purging prevents even internal investigators from discovering patterns of misconduct that should result in harsher discipline or termination. It also prevents plaintiffs suing officers over violated rights from obtaining key background info that could indicate an officer is a longtime abuser of citizens. In one case cited in Price's report, the PD began purging an officer's records as soon as the officer had been served.

The lack of a paper trail results in things like this happening:

Purged records don't appear in a file review.

Those records also don't show up during annual performance evaluations.

Officer Kevin McGowan, for example, earned top marks in his 2015 evaluation despite being disciplined for serious misconduct during the previous year.

The incident was captured in surveillance footage taken from the store.

McGowan was initially fired, but the union interceded and he ended up with only a 30-day suspension. A few years later, the disciplinary files were purged, resulting in this cop being commended for being such a great cop. Phrases like "positive attitude" and "community contributor" were tossed around by supervisors unaware of McGowan's recent past.

AZ Central's investigation involved comparing the list of disciplinary files sent to the city's Human Resources Department by the Fiscal Management Bureau with the list of misconduct records maintained by the PD's Professional Standards Bureau. What's considered to be an officer's "permanent record" is maintained by the city's HR department. "Maintained" is definitely overstating things.

By cross-referencing the two sets of records, The Republic identified hundreds of disciplinary cases that had been hidden from internal affairs and the Department's leadership.

Over five years, records of 90% of all sustained misconduct investigations had been erased.

Some of these records are supposed to be maintained for at least five years, according to the contract language. But AZ Central found multiple cases where files had been memory-holed ahead of schedule. Files detailing incidents that resulted in suspensions of over 80 days are never supposed to be purged, but the investigation discovered many of those were missing as well.

The PD explains away all this opacity by saying it increases officer morale. And of course it would. Many employees in many different fields would feel better about themselves and their jobs if they knew their misconduct would never be used against them. But the PD doesn't serve itself. Or at least, it shouldn't. It serves the public. And nothing about this union contract shows any concern about the public or its morale.

from the inching-towards-accountability dept

Another layer of opacity shielding bad cops from accountability has been lifted in California. Accountability and transparency hasn't exactly been welcomed by the state's law enforcement agencies, but recent developments have forced it upon these unwelcoming recipients.

As of the first of this year, police misconduct and use-of-force records are now obtainable via public records requests. For years, these have been locked away by statute, freeing California cops from the unimaginable horror of public accountability. This new law has raised several legal challenges from cops and their representatives, but so far, none of those have found courts willing to grant them their injunction requests.

Now, some of these same cops are going to find themselves even more exposed. The state's top court has just ruled that prosecutors must be informed about officers' past misconduct. The ruling may only discuss a single department, but it will affect every law enforcement agency in the state, as Maura Dolan reports for the L.A. Times.

The California Supreme Court decided unanimously Monday that the Los Angeles County Sheriff’s Department and other law enforcement agencies may alert prosecutors that a deputy who is slated to testify in a criminal case has a history of misconduct.

The decision overturned a Court of Appeal ruling that barred the sheriff from giving prosecutors the names of deputies who had committed misconduct, including lying, taking bribes, tampering with evidence, using unreasonable force or engaging in domestic violence.

The misconduct law enforcement agencies were previously allowed to keep secret is directly tied to exculpatory evidence owed to defendants. Anything that might diminish the credibility of a witness is supposed to be fair game. Unless, of course, it's a long history of abuse and misconduct by the officer on the stand. That's when cops start claiming these are confidential employment records rather than litanies of perpetrated abuse.

These lists of questionable officers are called "Brady lists," after the court decision establishing defendants' right to obtain exculpatory evidence from the government. In many states, these lists are still secret. That is no longer the case in California.

The Los Angeles Sheriff's Department has about 300 deputies on its Brady list. It sought an injunction blocking the disclosure of these names, claiming they were private "personnel records" that shouldn't make their way into open court. The lower court agreed. The state Supreme Court does not [PDF].

First, the new public records law removes some misconduct and use-of-force records from the state's personnel records exception. It doesn't remove everything but it does make it clear that any information the public can obtain with records requests cannot be declared "confidential" simply because it's being used in court.

Second, the ruling doesn't make Brady lists available to the general public. It only makes them available to prosecutors. Judges will view these submissions in private and decide what information is owed to defendants. This is not a blanket lifting of confidentiality, but rather a more limited approach guided by the court. But it does mean more information will make its way to defendants and, obviously, into open court.

The deputies' union makes several arguments as to why these officers should never have their misdeeds discussed in court, but the state's top court isn't buying it. Law enforcement agencies might be separate from prosecutors' offices, but they share some of the same obligations.

The Fourteenth Amendment underlying Brady imposes obligations on states and their agents — not just, derivatively, on prosecutors. Law enforcement personnel are required to share Brady material with the prosecution. (See, e.g., Carrillo v County of Los Angeles (9th Cir. 2015) 798 F.3d 1210, 1219-1223 & fn. 12.) The harder it is for prosecutors to access that material, the greater the need for deputies to volunteer it.

The Association’s contrary view that “Brady relates only to the prosecutor” and that “Brady . . . does not impose obligations on law enforcement” is distressing and wrong. The prosecution may bear ultimate responsibility for ensuring that necessary disclosures are made to the defense (see In re Brown, supra, 17 Cal.4th at p. 881), but that does not mean law enforcement personnel have no role to play.

Unfortunately, the ruling stops short of creating an obligation to share this information with the defense, but it does make it clear law enforcement agencies can no longer withhold it from prosecutors. It does at least establish a review process to handle defense requests for Brady list info so at least some of what's been turned over can be used to challenge the credibility of the prosecution's witnesses. It's not a massive step forward, but it's far better than the opacity California law enforcement agencies have grown accustomed to. Considering the number of deputies in the state with, shall we say, job performance issues, the flow of Brady info should be steady... and perpetual.

Nothing is going to improve if things like this keep happening. The backstory is this: Officer Philip Brailsford responded to call about a man in a hotel room with a gun. That man happened to be Daniel Shaver. Shaver killed pests so he owned pellet guns -- one of which he had in the hotel room with him.

Within minutes of Officer Brailsford's arrival, Daniel Shaver was dead -- shot five times by Brailsford whose AR-15 was decorated with the phrase "You're Fucked."

Shaver was, indeed, fucked. He never had a chance to make it out of this confrontation alive. The video of his shooting shows Shaver never posed a threat. It shows Brailsford was the aggressor in this situation -- laying down a steady stream of conflicting commands with the promise of death for any failure to comply.

On the video you can hear one of the officers screaming, “If you make a mistake, another mistake, there is a very severe possibility you’re both going to get shot … if you move, we are going to consider that a threat, and we are going to deal with it, and you may not survive it.”

[...]

Not only was the officer shouting in a very hostile voice, the orders were contradictory. “Do not put your hands down for any reason,” he tells Shaver. “Your hands go back in the small of your back or down, we are going to shoot you, do you understand me?” Shaver, who is now in tears, says, “Yes, sir.”

But immediately after, the commands change, “Crawl towards me,” and Mr. Shaver lowers his hands to the floor and begins moving toward the officers.

Within seconds of attempting to comply with the latest command, Brailsford decided Shaver was failing to comply and shot him five times, killing him.

Brailsford was charged with murder and manslaughter but a jury acquitted him of both charges. His employer fired him anyway, recognizing the threat Brailsford posed to citizens. All well and good, except it decided to make sure this firing caused the officer as little discomfort as possible. As Conor Friedersdorf reports for The Atlantic, it made a concession that will force taxpayers to fund the officer's early retirement.

As for the cop who pulled the trigger, he was “temporarily rehired by the department so he could apply for a monthly pension,” The Arizona Republic reported this month. In 2018, he was reinstated for 42 days and applied for accidental disability. “An accidental disability is one that occurred while the employee was on the clock and permanently prevents the employee from doing his or her job,” the newspaper explained, adding that the pension in question “totals more than $30,000 annually.”

So, what disability did former Officer Brailsford claim? Pretty sure you can't claim lack of good judgment and/or self-control as a disability, no matter how much these missing qualities have harmed your career. Nope, what Brailsford claimed was that he was the real victim in this shooting.

And the nature of the cop’s disability claim? According to an investigation by the local ABC affiliate, Brailsford said the incident in which he had shot Shaver had given him PTSD.

This is sickening. And it was enabled by his employer, which gave him the opportunity to make taxpayers pay for the mistakes he made as a cop. Being a bad cop pays just as well as being a good cop. And the agencies that could do something about police accountability simply won't, which means we get whatever they give us, at our expense.

from the it's-like-they-think-they're-above-the-law-or-something dept

It's been more than six months since a new law in California opened the books on police misconduct and use of force records. And there are still agencies stiff-arming public records requests. Law enforcement agencies aren't known for their transparency and accountability, which is why laws like California's are needed to force these obligations on them. But while violations of state law might get a resident arrested, they seem to be a bit powerless when it comes to making law enforcement behave in a legal fashion.

Los Angeles County Sheriff Alex Villanueva acknowledged earlier this year that public records requests were "stacking up." He has said he's asked the county Board of Supervisors for funding to hire more people to handle requests.

This excuse would be a hell of a lot more legitimate if the Sheriff's Office hadn't had months of advance notice. It had a chance to staff up prior to the law's enactment date, but it chose to wait until several months after that to start asking for help.

Thus ends the roundup of quasi-legitimate excuses for dodging accountability obligations. And even this one is still mainly horseshit. The Desert Sun reports the "we're doing what we can!" Sheriff has refused to search for records in response to requests, demanding requesters identify the specific cases they're seeking -- something that, in most cases, they can't possibly know until after they've gained access to records.

What follows from there is a list of non-compliant agencies:

Both the Orange County Sheriff's Department and the Long Beach Police Department have yet to release any records to KPCC/LAist, the Los Angeles Times, the Orange County Register or KQED.

The Los Angeles County Probation Department, which supervises youths held in detention, has declined to release records, claiming disclosure of records about cases involving minors is prohibited by law. Records from the department, which also supervises adults, could be redacted to remove names of protected individuals.

This is no longer a question of law. Courts have repeatedly held the new law is retroactive, making records generated prior to the beginning of this year responsive to requests. The state's Attorney General, Xavier Becerra, has apparently decided to see how much of this year he can spend with his head up his ass. He's appealing a decision by a judge granting access to records involving the state's DOJ… which still has yet to release the records it was ordered to release.

Other agencies have been a bit more compliant. The San Francisco PD has released a handful of records on four shootings by officers and the LAPD is continuing to release files on a rolling basis. In both cases, these agencies have upped their staffing to handle the influx of requests -- all without complaining publicly about their obligations.

Other agencies have chosen to go the route of antagonistic compliance -- following the letter of the law while making it very clear they hate everything about the law and every requester taking advantage of it.

The Los Angeles Sheriff's Department charged KPCC/LAist $1,655 to redact audio from shooting investigations [...]. The department has yet to provide the tapes.

The city of Bakersfield estimated that reviewing the audio and body camera footage related to a single shooting would cost about $6,621.60. Footage related to cases from the past five years, when Bakersfield Police shot 28 people, would cost an estimated $185,000.

West Sacramento estimated it would cost $25 per minute to redact its footage, meaning the material from five shootings would cost $25,000 in total.

The best way to close a marketplace you've been forced to enter is to price everyone out of it. This is an old school public records tactic, one designed to dissuade the general public from holding their public institutions accountable for their misbehavior.

And this doesn't even include the list of agencies who saw the legislative writing on the wall last year and started destroying old records before the public could start asking for them.

All of this adds up to a very ugly display of arrogance and disdain for the general public by the state's law enforcement agencies. There are a few standout agencies fully complying with the letter and the spirit of the law, but for the most part, law enforcement agencies are operating in go-fuck-yourself mode when it comes to public records requests. The end result will be an even greater divide between the police and the policed.

from the this-is-how-far-an-officer-has-to-go-to-lose-everything dept

It takes a lot for a law enforcement officer to lose the protective shield of qualified immunity. This protection originates from the courts, not from statute, so it tends to be interpreted pretty loosely by the judges applying it. It covers the most egregious abuses of civil rights and liberties, just so long as the officer being sued has performed these violations with sufficient creativity.

Every so often, though, a cop does something no court can forgive. The multitude of exceptions afforded to law enforcement officers occasionally cannot be stretched to cover their sins in a cloak of official forgiveness. The Sixth Circuit Appeals Court recently handled one of these rarities.

An opinion [PDF] whose opening paragraph contains this sentence is not going to end well for the appellant.

[T]he string of horrors Officer William Dukes Jr. paraded on Jeffrey Littlepage after a simple traffic stop has no place in our society.

And it is a string of horrors. It's an undeniable story of just how much havoc a man with a badge and bunch of power can wreak on a "civilian." When it comes to police/citizen relationships, only one side holds all the cards. And unless someone has the wherewithal to lawyer up -- and continue to litigate through multiple court levels for multiple years -- the badge and the abused power go unchecked.

Jeffrey Littlepage stuck it out. Good thing he did. Otherwise, Officer William Dukes might have skated on this string of horrors. Without Littlepage's tenacity, Dukes might be out of prison, free to roam around with a badge in hand and subject others to the same treatment he gave Littlepage.

Littlepage's story starts with a traffic stop. It doesn't end until Officer Dukes is behind bars. In between, there's a hell of a lot of abusive activity by a man who never should have been allowed to carry a badge.

Officer Dukes was presumably killing time waiting to fuck someone up when a call came in that someone had tried to run another driver off the road. For whatever reason, Dukes decided it was Littlepage. He didn't know who he was pulling over, so Littlepage won the SHIT COP lottery.

He approached Littlepage’s car and asked him to get out. When Littlepage did not respond quickly enough for Dukes, Dukes pulled him out. Unfortunately, the encounter did not end there. Dukes proceeded to frisk Littlepage, and it was not your ordinary frisk. Instead, Dukes “goosed” Littlepage (hit him in the genitals) and hit him in the back (after Littlepage had told him he had a bad back). R. 83, Pg. ID 1251. He then told Littlepage he was free to go, but not without giving him a warning. Dukes told him to stay off that road, and if he returned “down here, you’ll answer to me.” R. 82, Pg. ID 1008.

This was all terrifying enough for Littlepage, who had been minding his own business not running people off the road until he was pulled over by Officer Dukes and introduced to a brand new definition of "goosing."

The problem for Littlepage is he needed to drive down that road. He had a friend to pick up the next day and he wanted to know whether or not he could drive down that road without being pulled from his car and physically abused by Officer Dukes.

He called the police department to inquire about his options and to file a complaint against Officer Dukes. The Providence PD said to come in the next day to file a complaint. That posed a problem because Littlepage still needed to drive down that road the next morning. He explained this and the dispatcher patched him through to the officer on duty: Officer Dukes. Dukes told Littlepage to "come in next week" to file the complaint and hung up on him. Littlepage -- still with no answer -- called back.

This time, Dukes answered, and before Littlepage could even get his question out, Dukes threatened to arrest him for harassing communications if he ever called again.

Sensing a bit of an impasse, Littlepage escalated his complaint. He called the Webster County Sheriff's Office and then the Kentucky State Police, hoping to receive some sort of clearance to a) drive the road he needed to drive and b) get a complaint filed against Officer Dukes.

Law enforcement is an incestuous occupation. A literal game of "telephone" resulted in this:

Dukes soon got wind of Littlepage’s additional calls, and he hatched a plan to respond. He instructed the Providence dispatcher to call Littlepage and tell him that he could come down to the police station and complain to a supervisor, even though a supervisor was not on duty that night. Littlepage suspected this was “a trap” and instead asked if the supervisor could come to his house. Id. at 1024. The dispatcher said no but nevertheless asked Littlepage for his address. After confirming that no one would come and “harass” or “arrest” him, Littlepage complied. Id. at 1025. He then went to bed for the night.

Sleeping all night is fine for civilians, but if you're a pissed off cop with an axe to grind and all the taxpayer-funded time in the world to grind it with, you do this:

Littlepage’s sleep was cut short when Dukes showed up at his house, banged on his door until he answered, and said, “Get your clothes on. You’re under arrest.”

Littlepage refused to go with Dukes, arguing that he had committed no crime. Officer Dukes -- a firm believer in the sunk cost fallacy -- decided to amp things up to prove might makes right when it comes to people he had abused previously.

Dukes followed Littlepage into his house, and things quickly escalated. In the ensuing melee (captured on Dukes’s body camera), Dukes shot Littlepage twice with a taser, sprayed him in the face with pepper spray, punched him in the nose (thereby breaking it), and hit him with his baton multiple times. Next, Dukes handcuffed Littlepage. Once they were outside, Dukes told the responding EMT that “he hadn’t been in a good fight like this in a long while.” R. 83, Pg. ID 1152, 1156. Littlepage went to the hospital to recover, at which point Dukes issued him citations for (1) harassing communications, (2) resisting arrest, (3) assaulting a police officer, and (4) criminal mischief (for allowing his broken nose—courtesy of Dukes—to bleed on Dukes’s uniform)

This is why cops aren't fans of body cameras, despite the tech's utter failure to produce better police officers. Also: bleeding on an officer is a crime.

This situation was so fucked, a prosecutor stepped in to dismiss all charges against Littlepage and file charges against Officer Dukes. The case was referred to the feds: the US Attorney's Office.

Dukes maintains that he could arrest Littlepage because his calls served no legitimate purpose.

Contrary to Dukes’s claim, the evidence overwhelmingly shows there was no probable cause since Littlepage’s calls had a legitimate purpose. In fact, even Dukes admits that Littlepage was trying to obtain information about filing a complaint and about where he could permissibly drive. Both are legitimate purposes for his calls. Dukes and the dispatcher provided Littlepage with inconsistent information, thus requiring multiple calls for clarification. The dispatcher told Littlepage he could talk to the police chief the next morning, but Dukes said Littlepage had to wait until the following week. Neither Dukes nor the dispatcher clarified whether Littlepage could drive on the road again. And after the second call, Littlepage still did not have answers to his questions, so he called two other law enforcement agencies to seek advice. The jury heard recordings of these phone calls, and two of the dispatchers testified that, in their opinions, Littlepage’s call to them had been made for a legitimate purpose. Though Dukes may view the evidence differently, a rational juror could conclude that Dukes lacked probable cause to arrest Littlepage.

No qualified immunity. No "Fine. Just this once." No more arguments about the sufficiency of evidence. Officer Dukes is going to jail to spend some quality time with people he and his blue brethren have locked up.

Whether the bootlickers want to admit it or not, cops wield an outsized amount of power. Officer Dukes was completely in the wrong but he still assaulted someone during a traffic stop, refused to assist him with his followup questions, and showed up at his house to assault him again for thinking about filing a complaint.

The problem isn't necessarily the power. Without it, cops would be more useless than they already are. No, the problem is how readily we hand out power to those who can't be trusted to use it responsibly… and how slowly we rescind it from people like Officer Dukes. This kind of thing doesn't happen because Dukes is the bad apple in this particular barrel. It happens because Officer Dukes was pretty sure he could get away with it. In this case, he was wrong. But even as case law continues to develop, Officer Dukes -- convicted and imprisoned for abusing the rights of a citizen -- is an outlier.

from the be-bad,-get-paid dept

USA Today has scored a coup. It has partnered with police accountability nonprofit Invisible Institute to obtain misconduct records from around the nation. These paint a pretty bleak picture of American policing -- not just in the number of incidents, but in the number of incidents that go unpunished.

Public records requests have resulted in thousands of documents detailing at least 200,000 incidents of alleged misconduct, along with more than 100,000 internal investigations. The database is completely searchable and leads readers, reporters, researchers, etc. directly to the underlying documents.

Most misconduct involves routine infractions, but the records reveal tens of thousands of cases of serious misconduct and abuse. They include 22,924 investigations of officers using excessive force, 3,145 allegations of rape, child molestation and other sexual misconduct and 2,307 cases of domestic violence by officers.

Dishonesty is a frequent problem. The records document at least 2,227 instances of perjury, tampering with evidence or witnesses or falsifying reports. There were 418 reports of officers obstructing investigations, most often when they or someone they knew were targets.

Less than 10% of officers in most police forces get investigated for misconduct. Yet some officers are consistently under investigation. Nearly 2,500 have been investigated on 10 or more charges. Twenty faced 100 or more allegations yet kept their badge for years.

The last number is perhaps the most concerning. Without effective deterrents in place, there's nothing stopping officers from spending years under investigation while still earning a paycheck and, possibly, being allowed to directly interact with the public. Some agencies pull the trigger quickly when officers misbehave repeatedly, but the investigation found there are many that almost never pull a cop's certification, no matter how many misconduct complaints/lawsuits they've racked up.

Decertifying law enforcement officers can slow the roll of "gypsy cops" -- ones that wander from department to department violating policies, rights, and laws, traveling under the opacity provided to them by restrictive public records laws and union agreements. But since decertification so rarely happens, the worst cops can land top law enforcement gigs simply by looking for work in small communities unlikely to have the resources to fully investigate candidates for these openings.

[Town officials] found forms featuring the mayor’s apparently forged signature that David Cimperman used to add more than 30 officers to the town’s police roster – one for every 16 residents. Many never did any paid police work for the town, logging hours instead for a private security business that state investigators say Cimperman ran on the side. He tried to outfit them with high-end radios. The riot gear and other surplus military equipment he bought with taxpayer money are missing.

One phone call to Cimperman's former boss in New Philadelphia could have prevented this. Cimperman had been fired from that police department for… well, just about everything.

They hired a chief without knowing he’d been fired for perjury, quit a job as his bosses started investigating missing police equipment and was charged with a felony for tampering with police radios to make untraceable phone calls.

Fired twice from one department, Cimperman simply went somewhere and took a position giving him a lot of unearned power. This sort of story has been repeated multiple times around the nation. The records obtained through this investigation show multiple officers with long rap sheets obtaining high-level positions in other departments thanks to years of minimal accountability and the opacity that accompanies so many internal law enforcement documents.

The new database is an invaluable tool -- one that will continue to grow as more records roll in. National exposure of endemic law enforcement problems may nudge a few agencies to clean house and encourage even the smallest communities to vet incoming law enforcement officers and officials more thoroughly.

from the delayed-transparency dept

Not every law enforcement agency is refusing to comply with California's new transparency law. Effective January 1st, the law makes police misconduct and use of force records accessible to the public for the first time in the state's history.

The state's attorney general isn't happy. Neither are many of the state's law enforcement agencies. And the state's law enforcement unions are definitely opposed to the new transparency, not to mention the law's apparently retroactive reach. But while the unions are busy trying to keep the law from exposing historical misconduct records, some law enforcement agencies are quietly complying with both the letter and the intent of the law.

The Modesto Bee is one of the first beneficiaries of the new law. It has obtained misconduct records dating back to 2003 from the Modesto Police Department. The details contained in these are exactly the reason law enforcement unions are fighting so hard to keep these records out of the public's hands.

The Modesto Police Department since 2013 has fired five police officers who it claimed were dishonest, including one who allegedly made false reports in DUI arrests to another who allegedly defrauded the federal government out of nearly $10,000.

[...]

Modesto police also released records related to 52 instances dating to 2003 in which officers discharged firearms at someone or their use of force resulted in death or great bodily injury.

Oddly, the use of force records the Modesto PD had on hand have been retained long past the five-year destruction period -- something that suggests the PD sees some value in keeping these files intact. (This is bound to piss off the union representing MPD officers, though. Expect some sort of public condemnation, if not an actual lawsuit, from the union in the near future.)

The documents detail the sort of thing we've become accustomed to seeing in police departments: mainly, a lot of dishonesty. There are reports of an officer lying about a rape investigation, an officer covering up damage he caused to his squad car by failing to put it in park before exiting his vehicle, and another officer taking home nearly $10,000 in housing stipends by falsely claiming he lived in a more expensive neighborhood.

But probably the most egregious misconduct uncovered was engaged in by an officer who had received commendations and public praise by Mothers Against Drunk Driving for his DUI enforcement efforts. But the numbers he was racking up were too good to be true.

[The] problems included the officer’s body camera footage not supporting what he wrote in his reports, including writing that he observed signs of intoxication when none was present on the footage, and relying on an “odor of alcohol” for conducting field sobriety tests, but the suspects’ blood alcohol levels turned out to 0.00 percent. Internal affairs concluded the officer’s conduct was “often rude, belittling, abrupt and arrogant.”

The officer “stopped drivers without reasonable suspicion, based on nothing more than the fact they were leaving the parking lot of a bar. He mocked the drivers he pulled over, ... recorded evidence of impairment that did not objectively exist, and arrested them without probable cause.

Unfortunately, the report chalks all this up to the officer's "zeal" and refers to his repeated violations of drivers' rights as "a lack of fairness." Yeah, that's pretty much just exonerating with faint damnation. In reality, this was an abuse of the officer's power -- power granted to him by the citizens he's not supposed to be ringing up on bogus DUI charges.

This is just the tip of California law enforcement's ugly iceberg. What's seen here isn't some sort of anomaly. Every department has plenty of dirty laundry. They just can't keep it buried in the back of the closet anymore.

from the best-part-of-bashing-your-head-against-the-wall-is-when-you-stop dept

California law enforcement's losing streak continues. Since the new state law went into effect at the beginning of the year, California police unions have been battling the new transparency, claiming the public records law does not apply to historical records of police misconduct or use of force.

Appellate judges found no reason to consider that Superior Court Judge Charles Treat's Feb. 8 decision that the state's new police transparency law, Senate Bill 1421, covered past years would be overturned on appeal and declined to hear the case. A stay on the release of records will end on March 19 unless the unions appeal to the state Supreme Court.

The unions will undoubtedly appeal. But it likely won't make any difference. The two rejections by the state Supreme Court include a petition by one of the state's sheriff's unions, which filed its petition right after the state court lifted the temporary injunction. This rejection, however, came with a comment from the appeals court -- one that indicates this will all end in tears (and released records).

"For the reasons stated by the trial court, appellants' argument is without merit," the court's order says.

The argument unions are pushing is a non-starter. At best, it's just delaying the inevitable. And the stance the state's unions are taking isn't even directly aligned with the departments whose employees they represent. Some law enforcement agencies are already turning over documents to records requesters without making them jump through litigation hoops or wait for a final call from the state's top court.

Sooner or later, the inevitable conclusion will arrive. And then agencies can get back to their usual stonewalling and foot-dragging. No matter what the courts decide on the retroactivity issue, it's still going to take some form of litigation to pry these records loose.

from the back-of-the-line,-buddy dept

California cops hoping to hide their past misdeeds from the public are going to have to get by without the help of the state's highest court. A new law went into effect January 1st, opening up police misconduct records to the public for the first time in the state's history.

With few exceptions, law enforcement's response has been to pretend the law's reach doesn't extend retroactively. This runs contrary to the intent of the law as clarified directly to the courts and the state attorney general's office by the law's author, Senator Nancy Skinner.

Several lawsuits have been filed -- some by records requesters and some by law enforcement agencies. Both are seeking a declaration from the courts that their side is the right side. So far, two state courts have sided with requesters, stating that the law is retroactive.

Just after the law took effect, the Sheriff's Employees' Benefit Association petitioned the state supreme court directly, asking for a ruling on the law's reach. This request was denied by the court without comment, suggesting the state's top court was happy to let the lower courts handle this determination.

After a Los Angeles Superior Court judge ruled against unions for the Los Angeles County Sheriff's Department and the Los Angeles Police Department, one union asked the state Supreme Court to weigh in. On Wednesday, the high court declined, leaving in place the lower court's decision.

The court rejected this request without comment, wordlessly reiterating its stance on the issue: let the court system do its work and stop trying to jump the turnstile. The next step for disappointed fans of opacity are the states' appeals courts, not the one at the top of the judicial food chain.

From what we've seen so far, it seems unlikely the uniformed anti-transparency activists will prevail. The two courts to return rulings have stated the law affects pre-2019 police misconduct records. The state attorney general's deliberate obtuseness hasn't budged the judicial needle. Eventually -- but hopefully sooner than later -- public records requesters will have a clear answer and complete access to records detailing the impropriety and abuse their tax dollars have paid for.

from the I-guess-the-Constitution-only-protects-bad-cops dept

California Attorney General Xavier Becerra has decided there's too much First Amendment in his state. First, he ignored clarification provided directly to him by the author of the state's new public records law to declare past police misconduct records off limits. Claiming the question of retroactivity was still open, Becerra denied public records requests seeking documents created prior to January 1, 2019.

His next potshot at the First Amendment occurred shortly thereafter. Journalists from UC Berkeley received a list of convicted California police officers in response to a records request. The list covered 10 years of convictions and contained 12,000 names. At this point, the journalists have not published the full list. But they have been vetting the list to prep for publication.

That's where AG Becerra stepped in. He told the journalists it was illegal for them to possess "confidential information" they obtained lawfully through a public records request. He's wrong, of course. It is not illegal to possess documents received via public records requests even if the government entity has mistakenly sent you the wrong documents.

As for the "confidential" claim, any convictions would already be public records, seeing as prosecutions are handled by the state's court system. What the list does is provide one-stop shopping for bad cops, which is what law enforcement agencies are doing when they run applicants against this list.

So far, only three officers' names have been published. AG Becerra is trying to ensure those three names are the only ones the public will ever see. If the First Amendment needs to be damaged to protect bad cops, that's a sacrifice he's willing to make.

In a statement provided to Freedom of the Press Foundation on Wednesday, a spokesman for the California Department of Justice doubled down on the contention that the journalists are breaking the law:

“The UC Berkeley Investigative Reporting Program is not an entity permitted to possess or use this confidential data. The UC Berkeley Investigative Reporting Program chose to publish the confidential information of Californians despite being alerted by the Department of Justice that doing so was prohibited by law.”

The AG's office is still threatening the reporters with criminal charges simply for possessing the list. But even if the journalists publish the list in full, it's unlikely any court will support Becerra's decision to pretend the First Amendment doesn't exist. Both the act of requesting public records and the publication of obtained records are protected speech. AG Becerra has nothing to work with here, but he's publicly demonstrating his willingness to do whatever it takes to protect the state's bad cops.

Worse, he's doubled down. When AG Becerra was asked for clarification by the Freedom of the Press Foundation, he had this to say:

“We always strive to balance the public’s right to know, the need to be transparent and an individual’s right to privacy. In this case, information from a database that’s required by law to be confidential was released erroneously, jeopardizing personal data of individuals across our state. No one wants to shield criminal behavior; we’re subject to the rule of law.”

If Becerra has a problem with "jeopardizing personal data," the only action he should be taking is against the government entity that (supposedly) breached the law by releasing it to reporters. Becerra's nod to "rule of law" is especially rich. The Constitution is part of the "law" Becerra professes allegiance to. But it's clear he'd rather cover up for his cop buddies than respect the parts of the law that restrain his ability to punish people for protected speech.